Court ruling further clouds Britain's EU exit

By Michael Sercan Daventry

LONDON

Three judges in a London courtroom delivered a short verdict that triggered delight among Europhiles and fury among those who want the U.K. to leave the EU.

Ruling on a legal challenge mounted by investment manager Gina Miller, the judges said Britain cannot begin exit negotiations with the EU without the approval of lawmakers in parliament.

The outcome heaped more ambiguity on to a process that was already uncertain.

In the four months since the U.K. voted by a narrow margin to leave the EU, Prime Minister Theresa May’s government has said very little about its negotiating position. It has not spoken publicly about the kind of trading and diplomatic relationship it envisages between Britain and the remaining 27 members of the bloc once Brexit finally occurs.

The judges’ ruling, delivered on Thursday in London’s High Court, is yet another barrier that must be raised before Britain and Europe can sit around a table and start talking.

Unlike the electorate, a majority of lawmakers favored Britain remaining in the EU. It is entirely possible that parliament -- in which the governing Conservative Party has a narrow majority of 14 seats -- could refuse May permission to start exit negotiations.

Amid the uncertainty, this week’s court ruling showed that the passions that divided the country in June’s referendum are still alive.

“Enemies of the People” declared a front-page headline in Friday’s right-wing Daily Mail beneath photographs of the judges who delivered the verdict.

‘Out of touch’

There was “fury over ‘out of touch’ judges who defied 17.4M Brexit voters and could trigger [a] constitutional crisis,” it said, one of several newspapers indignant that the referendum outcome could be overturned.

Another was the Daily Express, which said in a front-page editorial: “Three judges yesterday blocked Brexit. Now your country really does need you: we must get out of the EU.”

The Times newspaper speculated the ruling could trigger an early general election if the government loses an appeal at the Supreme Court, the highest court in the country.

The newspaper attacks were motivated in part by a belief that the judges were overturning June’s referendum result, in which the U.K. voted by a 52-48 percent margin to leave the union.

The reality is more nuanced. Miller and her legal team applied to the judges in an effort to clarify what powers the government held after the referendum.

The case specifically concerned Article 50 of the Treaty on European Union, which allows member states to withdraw from the bloc but had ramifications for Britain’s entire constitutional system.

The government had argued it could invoke the article -- and, therefore, begin the process of ending Britain’s membership -- without consulting parliament because the executive branch has the power to withdraw from international treaties.

However, the judges disagreed and said the original law that parliament approved in 1972 to allow Britain to join the European communities -- the EU’s predecessors -- could only be abolished by parliament.

“The most fundamental rule of the U.K.’s constitution is that parliament is sovereign and can make and unmake any law it chooses,” a summary of their judgment published online said.

Court appeal

“As an aspect of the sovereignty of parliament it has been established for hundreds of years that the Crown -- i.e. the government of the day -- cannot by exercise of prerogative powers override legislation enacted by parliament.

“This principle is of critical importance and sets the context for the general rule on which the government seeks to rely.”

It said the government was wrong to consider the Treaty on European Union to be solely an international treaty because EU membership affects so many aspects of British domestic life.

The judges’ wider point was that, in the British constitutional system, parliament carries greater weight than the government of the day.

The Supreme Court is due to hear an appeal on Dec. 7, with a ruling to follow in the first weeks of 2017.

Such is May’s confidence that the court will back the government’s argument that she told European Commission President Jean-Claude Juncker and German Chancellor Angela Merkel in separate phone calls on Friday that she was not changing her plans to trigger Article 50 by March.

“We are very confident we will win in the Supreme Court,” May’s spokesman told the Independent news website.

“We remain of the firm belief that we have strong legal arguments ahead of the case which will be moving to the Supreme Court next month.”

However, if the court rules against May, she will face a tricky battle in parliament -- and a possible early election.